GUYANA | Attorney Darren Wade Rubbish Attempt to Serve Summons Overseas

Editor,
 I write to express my grave concerns regarding the recent attempt by the Guyana Police Force (GPF) to serve a summons on Rickford Burke, a Guyanese citizen residing in the United States.

Section 51 Criminal Law (Procedure) Act provides:
Upon any complaint or information given to a magistrate that an indictable offence has been committed by any person whose appearance he has power to compel, the magistrate shall consider the allegations of the complainant or informant, and, if he is of opinion that a case for so doing is made out, he shall issue a summons or warrant, as the case may be, in the manner hereinafter mentioned; and he shall not refuse to issue the summons or warrant only because the alleged offence is one for which an offender may be arrested without warrant.

Section 52 states:
(1) The magistrate may issue a summons although there is not any complaint or information in writing or upon oath.
(2) The summons shall be directed to the accused person, and shall require him to appear at a certain time and place to be therein mentioned.
(3) The summons shall not be signed in blank.
(4) The summons shall be served by a police or other constable upon the accused person, either by delivering it to him personally, or, if he cannot, with the exercise of reasonable diligence, be encountered, by leaving it with some person for him at his last or most usual place of abode.

5) Where it becomes necessary to prove the service of any summons, notice, order or other process whatsoever issued under this Act which has been served by a bailiff or constable a return of service in Form 6 in the Fourth Schedule, purporting to be signed by the bailiff or constable, shall be received in all courts as prima facie evidence of the facts stated in the return without proof of the signature or official character of the bailiff or constable.

The actions of the GPF have exceeded their jurisdictional boundaries. The relevant legislation, namely the Criminal Law (Procedure) Act, makes no provision for magistrates to order service of summons overseas.

Furthermore, while the Act doesn’t explicitly limit service to within Guyana, its provisions for service by police officers and the established territorial limitations of their powers suggest that magistrates lack the authority to order overseas service.

Magistrates’ courts are created by statute. It follows that magistrates are purely creatures of statute. Their jurisdiction originates and is founded in statute: R v Horseferry Road Magistrates’ Court ex p K (1996) 160 JP 441, p 447. This means that everything they do must be based on legislation passed in parliament and assented to by the president.

Furthermore, the legislation made it clear that that service shall be done by a police or other constable. The Guyana Police Force in its 21st December press release claimed that Rickord Burke was severed by a Process Server who is a private citizen, and there is no provision in our laws for such person.

Consequently, for all the reasons above the purported service is null and void. It must be underscored that extradition proceedings are used in order whereby a person accused or convicted of an extraditable offence in one State is found in another State (the requested State) and the foreign State (the requesting State) seeks the return of that person through diplomatic channels to be tried or to serve his sentence in the requesting State.

Further, in order to constitute an extraditable offence the conduct alleged charge against the person accused or convicted, as described by the requesting State, must correspond with an offence which is punishable under the laws of the requested State.

In this case, the Guyana Government will need to show that there are similar offences in the United States and that there is sufficient evidence that Mr. Burke has committed a crime. I believe the first stumbling block for the government is showing that the alleged words spoken or published by Mr. Burke constituted offences in the United States a country where free speech is zealously guarded as a constitutionally guaranteed right.

The United States is not like Guyana where when something is said that offends a politician you are arrested and thrown before the court.

In addition, dispatching officers to another sovereign state without explicit authorization from both nations risks undermining international norms and infringing upon the principles of self-governance.

The potential breach of US sovereignty by Guyanese police officers, even for a seemingly innocuous task like serving a summons, cannot be disregarded. Article 2(4) of the United Nations Charter expressly prohibits the use or threat of force against another state.

The International Court of Justice has consistently held that the deployment of military or paramilitary personnel into foreign territory without consent constitutes a violation of sovereignty.

Notwithstanding the contention that Mr. Burke committed no offence and the alleged offences are fabricated and politically motivated to repress his free speech rights, the unlawful method of serving the summons casts a concerning shadow over the GPF’s adherence to due process and respect for international law.

All for your information and guidance.
Regards,

Darren P.W.Wade